Background on the case is here and here. We wrote initially that this was another failed Ashcroft prosecution. There were a lot of twists and turns in this case during trial, including the main informant's setting himself on fire, not being called by the prosecution, but being called by the defense as a hostile witness, which ended up providing the prosecution with an opportunity to have paint a very bad portrait of the Sheik during cross-examination. And, paved the way for the introduction of video tape of the Sheik at a mass wedding, originally ruled inadmissible by the Judge. The defense knew it was taking a calculated gamble.
A prosecutor, Kelly Moore, introduced the videotape after the defense gambled that any damage it might do would be outweighed by the doubts about the case they hoped to raise by calling as a witness the prosecution's former star informer, Mohamed Alanssi, who set himself on fire outside the White House in November.
...Mr. Alanssi, in his third day of testimony yesterday, [testified he] shot the videotape of the wedding in Yemen in September 2002. Judge Johnson's ruling last month said the prosecution could not introduce it unless he testified. By then, prosecutors had decided not to call him because of a series of legal and financial problems that drew public attention after the White House episode.
Last week, though, the defense lawyers called Mr. Alanssi to the stand to try to create the very credibility test the prosecutors wanted to avoid. The defense lawyers made only a perfunctory objection yesterday to the playing of the tape.
The jurors displayed some disharmony during deliberations, particularly when they asked for the conspiracy charge to be re-read:
The panel wanted to know whether conspirators have to agree among themselves or can each separately agree to a plot brought to them by a government informant. Defense attorneys have maintained the defendants were entrapped by undercover FBI operatives.
In reading back the charge, Johnson repeated that a person cannot be guilty of conspiring with a government informant. The FBI undercover operatives were seen on secretly made recordings asking the defendants to help funnel money to the terrorist groups. Prosecutors believe the tapes show al-Moayad and Zayed conspired together.
When the jury entered the courtroom for the final time Wednesday, some members appeared tired and sullen. Some leaned back in their chairs and looked distracted as Johnson read the conspiracy charge.
What may have sealed the defendant's fate more than anything was the decision by the Judge to allow testimony of a witness about attending an al Qaeda training camp visited by bin Laden. Then the Judge allowed a video tape of bin Laden at the terror camp. The Government never alleged a connection between the Sheik and the terror camp. But, the Judge agreed with prosecutors that the defense had "opened the door."
The defense has said there is no evidence that Sheik Moayad even knew the training camp inductee or the Bosnian fighters. But the prosecutors returned to the issue, noting that the defense lawyers had told the jurors that the sheik had no inclination to participate in terrorist activities. The defense claims he was entrapped in hours of secretly videotaped conversations in which he talked about jihad and financing.
The prosecutors claimed that the entrapment argument opened the door for them to then present what proof they had about the sheik's prior ties. In his decision yesterday, Judge Johnson offered little explanation, other than saying he agreed with the prosecutors. "The door has been opened," he said.
Just about the worst thing that can happen during a trial is unintentionally "opening the door." Everyone's done it at one trial or another, sometimes as part of a calculated gamble, sometimes unintentionally. I think the defense put up a good fight in this case in the face of some questionable evidentiary rulings by the Court.
